Intellectual Property

There are various intellectual property rights. Intellectual property rights are therefore an umbrella term for property rights on creations of the mind. Intellectual property can be used to protect a product or service or its branding. You can think of:

Legally, a registered intellectual property right is preferable (e.g. a patent, design or trademark). In this case, the law provides the intellectual property rightholder with various instruments to protect the intellectual property against infringement. For example, the levying of an attachment or the commencement of interlocutory proceedings. Usually, however, an injunction to cease (and desist from) the infringement is demanded. This prohibition is almost always accompanied by a penalty payment. In addition, it may be required that the infringing products or copies are removed from the market and destroyed. Finally, various financial claims may be requested: profit transfer, damages and reimbursement of legal costs. In the case of the transfer of profits, these are the profits made as a result of the infringement of intellectual property rights. In order to determine the profit, the infringing party can be condemned to account for its turnover.

If a product or service is protected by an intellectual property right, certain acts relating to the product or service in question are thus regarded as an infringement of the intellectual property right. For example, the illegal copying of a book, the placing of photographs on a website without the consent of the trademark owner or the use of a trade name already used by another company. More generally, infringement is said to occur when someone carries out acts that are exclusively reserved for the rightholder without the rightholder’s consent. This can be distribution and reproduction, exploitation or use. If a rightholder observes an infringement of his intellectual property right, this is usually a civil matter and it is up to the rightholder to take action.

Do you have questions and would you like to know what steps are appropriate in your case? Then please contact Law & More. After all, it often happens that someone, entirely in good faith, places a copyright-protected photo on a website provided by an employee without being aware of a violation. In these cases it may be sufficient to inform the infringer (in writing) of the infringement and to summon him to cease the infringement. In addition, under circumstances a good agreement may be sufficient. For example, if you want to move forward through cooperation with others at a time when technological developments are tumbling over each other and companies are innovating at breakneck speed. In that case, a good agreement can prevent a great deal of hindsight with regard to, for example, business secrets or the sharing of data. However, this requires specific knowledge of a lawyer. Law & More has the right experience with legal assistance in the field of intellectual property and innovation of companies and organizations and can therefore help you with regard to the following intellectual property rights:

Copyright protects the creator’s works and gives the creator the right to publish, reproduce and protect his work against misuse by third parties. A creator may also be an employer if he or she has maidwork in the course of his or her employment and meets other legal requirements.  The term ‘work’ includes books, films, music, paintings, photographs and sculptures. In fact, anything that concerns the creation of the mind with its own original character and the personal stamp of the creator that has been sufficiently elaborated (concepts and ideas are free). Although a copyright does not have to be applied for, as it arises automatically when a work is created, it is advisable to have the copyright recorded. By recording the right, you can always prove that the work existed on a certain date. The maximum period of validity of this right is 70 years after the death of the creator.

These rights protect the efforts and achievements of performers, music producers, film producers and broadcasting organisations; in short, anyone who performs, sings, recites or otherwise ‘performs’ a literary or artistic work. An interpretation of a work by a performing artist can indeed be a creative performance, but this performance often does not meet other copyright requirements. That is why a separate right has been created for such performances. The protection is similar to that of copyright, which is why we call them ‘relating’. As in the case of copyright, the acquisition of related rights does not require any formalities. The related rights to performances, films and broadcasting programmes expire after 50 years. With regard to sound recordings, a different term of protection of 70 years applies. However, this extended term only applies in the context of music. In contrast to copyright, the term of protection of related rights does not primarily concern the person, but the protection of the performance and the recording thereof.

These rights mean that the creator of the work can object if, for example, his work is published under a name other than his own. The creator can also act if his work is mutilated or damaged by others. In addition, the creator can object to other alterations made to the work, but only if the objection does not conflict with reasonableness. The author always retains his personality rights, even if he has transferred his copyrights to a publisher, for example. However, part of the personality rights may be waived. In that case, for example, the author agrees with the publisher that he will not oppose the omission of the name or the making of changes to the work. However, the right to object to mutilation or impairment of a work or to the alteration of the author’s name can never be waived. The creator therefore always retains this personality right. An exception applies to persons who have worked on a film. They are presumed to have waived the right to object to changes being made to their contributions, unless otherwise agreed in writing.

The resale right is the right of the creator of an original work of art to receive a small percentage of the sale price when his work is resold through the professional art trade. The idea behind this is that graphic or visual artists have fewer opportunities to earn money from their work of art than writers of musical works, novels or poems, who are usually paid per copy sold. The resale right only applies in the event of resale of a work of art, i.e. not in the event of first sale. When copyright expires (70 years after the death of the original creator), the resale right also lapses.

The portrait right is part of the copyright. The Dutch Copyright Act distinguishes two situations for portrait rights, namely a portrait that has been commissioned and a portrait that has not been commissioned. Between both situations there is a big difference in the consequences of publication and the rights of the parties involved. A ‘portrait’ is when someone is portrayed recognizably. For the question whether something is a portrait, not only the facial features of the person being portrayed are important. A typical posture, certain attributes or the environment can also play a role. It also has to be determined whether the portrait was commissioned and whether privacy outweighs freedom of expression. If someone has commissioned a portrait of a person, the portrait may only be made public if and to the extent that the person in question has given permission.

Databases, but also other ordered collections of works or data can be protected under database law. Many databases cannot be protected by copyright because originality and creativity do not play a role in the collection of the data.  This so-called database right protects any ‘collection of works, data or other independent elements, organised in a systematic or methodical way, and accessible separately by electronic means or otherwise’. An important requirement for protection by database law is that there is a ‘substantial investment’ in the composition and/or maintenance of the collection.

Trademark law is the body of legislation, rules, requirements and case law that determines the rights to a trademark. As a result, this trademark may only be used with the consent of the owner of the trademark. Trademark law has a formal requirement. A trademark can only be obtained through an application. This application is registered in the trademark register by the trademark authority. There are actually three routes for obtaining rights: national, international and for the entire European Union. We do not have national trademark rights in the Netherlands because we are subject to Benelux trademark law. If you obtain a trademark in the Netherlands, it applies in the Benelux. The protection lasts for 10 years. If the trademark is not used for 5 years, the right to protection lapses.

A trade name is nothing more than the name under which a company becomes a business. In order to prevent deception or confusion among the public, the entrepreneur enjoys trade name protection. This means that another company may not use the same trade name if this creates a risk of confusion. In principle, trade name law applies for an indefinite period of time, at least as long as the company uses the name as a trade name. A trade name does not need to be registered in the trade register in order to be protected. The company that was (and continues to be) the first to use a trade name in public life is protected. The trade name must then actually be used in public. This use may be evidenced by displaying the name on stationery, on the facade of the company, in advertisements, but also by registration in the trade register of the Chamber of Commerce. If the Trade Name is also used as a trademark, the trademark may be filed with the Benelux Trademark Office, provided that the requirements for a trademark have been met.

Strictly speaking, a domain name is not an intellectual property right, but merely a kind of right to use a unique word as an internet address. A domain name is a name that refers to a numeric IP address. This IP address is an address of a computer connected to the internet consisting of a sequence of ten digits. The IP address is similar to a telephone number. Because this IP-address is difficult to remember (and therefore not commercially attractive) domain names (often easy to remember) are used. In many cases, when creating a domain name, use is made of already existing trade names and/or brand names, so that the website is easy to find. In some cases, this can result in a trade name and/or trademark infringement.

Design right is an exclusive right. It is the way to protect a new drawing or a new design with its own character. The appearance of a product or a part thereof can be regarded as a drawing or design. The appearance of a product is inferred from the features of, in particular, the lines, contours, colors, shape, texture or materials of the product itself or its ornamentation. The exclusive right shall include the right for the holder to use the design in order to manufacture, offer, market, sell, supply, rent, import, export, exhibit, use or stock it and to prohibit third parties from doing so without authorization. The design right is often confused with copyright. The essential difference between design right and copyright is the fact that copyright arises through creation and that design right only exists after registration. It is therefore possible to prove exactly when the right arose and from when it was protected. The maximum duration of design rights in the Benelux is 25 years.

A patent (also known as a patent) is a temporary exclusive right to produce or sell a precisely defined technical idea (invention) or to put it into circulation in any other way. A person who holds the patent right can prohibit others from using his invention for a period of twenty years. This means that others cannot simply reproduce or sell the invention. However, patent law is not active protection. If the proprietor of a patent suspects that his rights are being infringed, he must take steps to challenge this himself. The invention, which is the subject of a patent application, must be new, inventive and industrially applicable. A patent can be applied for at the Netherlands Patent Office. In order to obtain a patent in several countries, an inventor must, in principle, apply for a patent separately in each country in the language of that country. The maximum term of protection of a patent is 20 years.

Breeders’ Rights is a form of intellectual property on new and valuable plant varieties. It gives its holder the exclusive right to the marketing of seed and propagating material of the variety concerned. New varieties are chosen on the basis of their qualities and are often created after a lengthy and costly breeding process. Growers of new varieties therefore benefit from getting the most out of the exploitation of their varieties and at least recouping their breeding costs. Protecting a new variety by establishing a breeders’ right is an important condition for this. Breeders’ Rights give the holder the exclusive right to market propagating material (seeds, cuttings) of his variety as well as harvesting material (cut flowers). The holder of Breeders’ Rights must himself ensure that others do not infringe his right. It  can be granted for between 25 and 30 years, depending on the type of crop.